JUDICIAL APPLICATION OF 2015 ELECTION LAWS IN NIGERIA – PART 1
JUDICIAL APPLICATION OF 2015 ELECTION LAWS IN NIGERIA
INTRODUCTION[1]
The 2015 general elections in Nigeria were widely acclaimed as substantially free and fair.[2] This however does not detract from the fact that the election was also interspersed with pockets of irregularities, malpractices and violence in various parts of the country.[3] There was palpable apprehension in the days leading up to the elections that the presidential election in particular would occasion serious violent conflicts in the country[4] given the bitter altercations that underscored the campaigns of the two major contending political parties – the Peoples’ Democratic Party (PDP) and the All Progressives Congress (APC).
However, as the results of the election gradually emerged and it became obvious that the APC candidate (Muhammadu Buhari) was headed for victory, the then incumbent president (Goodluck Jonathan) exhibited a spirit of sportsmanship uncommon in Nigeria’s political firmament by conceding defeat and congratulating Muhammadu Buhari. It was that singular noble act that put paid to and circumvented what would have been an egregious national conflict between the predominantly Muslim Northern Nigeria, largely in support of Buhari, and the predominantly Christian Southern Nigeria, largely in support of Jonathan.
Conceding of defeat by President Jonathan also foreclosed what would have been a bitter legal battle at the election petition tribunal, and thus saved the judiciary and the nation at large the usual tension and uncertainty that presidential election petitions in Nigeria are associated with. Be that as it may, the governorship, National Assembly and State Houses of Assembly elections petitions that took place in various States across the country foisted their own fair share of tension and violence in parts of the country.
Available statistics from the 2015 election outcome show that in the presidential election APC candidate, Muhammadu Buhari, defeated the then incumbent president, Goodluck Jonathan, with 53.96% of votes against the latter’s 44.96%. APC also secured majority of the seats in the National Assembly wining 60 out of 109 seats in the Senate (55%), and 212 out of 360 seats in the House of Representatives (58.9%). In the gubernatorial elections in 29 States, APC won 20 while PDP won only 9.[5] As for election petitions, INEC disclosed that a total of 611 petitions were filed before the various election petition Tribunals created sequel to the 2015 general elections.
The aim of this review of the 2015 general elections is to take a critical look at the challenges that underscored the election process, the key legal issues that arose or emerged from those challenges, and how they were determined by the election petition Tribunals and appellate Courts. The interesting judicial decisions in the governorship election petitions of Abia, Akwa Ibom and Rivers States are specifically analyzed with a view to identifying the legal puzzle that the Supreme Court sought to resolve in those and several other election appeals. Finally, a few recommendations are volunteered towards enhancing the integrity of Nigeria’s electoral process.
RECONDITE AND CROSS-CUTTING ISSUES EMANATING FROM THE 2015 ELECTIONS AND THE ELECTION PETITION PROCEEDINGS
- USE OF THE CARD READER:
The Independent National Electoral Commission (INEC) is one of the executive bodies created under section 153 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 160 (1) of the said Constitution provides that any of such bodies may, with the approval of the President, by rules or otherwise regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions. Pursuant to the aforesaid powers conferred upon it by the Constitution, INEC issued ‘Approved Guidelines and Regulations for the Conduct of 2015 General Elections’, which among other things provides that “accreditation process shall comprise of verification of voters using the Card Reader; checking of the Register of voters; and inking of the cuticle of the specified finger”[6]
The introduction of the Card Reader via the Approved Guidelines was an innovative measure by INEC aimed at improving the transparency and credibility of the electoral process. The use of the Card Reader is therefore a novel addendum to the accreditation and voting procedure specified under Section 49 of the Electoral Act, 2010 (as amended), which provides as follows:
A person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card. The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.[7]
The procedure for accreditation of voters and voting adopted during the 2015 general election as outlined in the Approved Guidelines is that a voter presents himself to the Assistant Presiding Officer (APO) III of the polling unit, who upon determining that the voter is in the correct polling unit, directs the voter to APO I. The later shall request the Permanent Voters Card (PVC) from the voter and read same with the Card Reader to ascertain that the photograph on the PVC is that of the voter, and that the voter is indeed registered for that polling unit, and authenticate the finger prints of the voter using the Card Reader.[8] After this verification of a voter by the use of the Card Reader, the APO I then confirms that the details of the voter is contained in the Register of Voters, applies indelible ink on a left finger of the voter and issues him/her an accreditation tag, and requests the voter to leave the polling unit and return by 1:30pm, which is the time for commencement of voting.[9]
The Approved Guidelines places much emphasis on the need for voters to be verified by the Card Reader, so much so that a voter who could not be verified after a 2nd attempt would be asked to leave the polling unit;[10] and where the Card Reader for a polling unit malfunctions and a replacement is not available by 1:00pm the Presiding Officer or APO shall inform the appropriates superiors and discontinue the voting process until the following day. [11] On the other hand, where accreditation is successfully concluded using the Card Reader, the Presiding Officer compares the number of verified voters generated by the Card Reader with the number checked in the Register of Voters, and if they are consistent loudly announces the total number of accredited voters, if however there occurs a discrepancy, he shall take into account any incidents of failed verification and reconcile the number.[12]
From the foregoing rigorous procedure for accreditation of voters using the Card Reader, there is no gain-saying that the introduction of the Card Reader was intended to be a bold step towards ensuring free, fair and credible elections in Nigeria. Unfortunately, experience during the 2015 general elections indicated that there was high incidence of malfunctioning of the Card Readers – delaying the accreditation process for several hours beyond the 1:00pm timeline for close of accreditation, and in many cases resulting in the postponement of accreditation and election, and in other cases still INEC officials had to abandon the Card Readers and resume the manual process of accreditation using the Register of Voters alone.
The introduction of the Card Reader by INEC and the challenges it threw up during the 2015 elections therefore became a big issue in several election petitions brought for determination before the various Election Petition Tribunals. The Supreme Court on 8th January, 2016 in the case of Mahmud Aliyu Shinkafi v. Y. Abdulazeez Abubakar Yari & 2 Ors.[13] finally laid to rest the controversy elicited from the divergent positions taken by the various election Tribunals and Court of Appeal on whether the card reader can be relied upon in seeking to nullify an election. The Court pronounced on the issue as follows:
My view on this is that the principle of law that is well established cannot be abolished simply because an appellant failed to prove his case in accordance with those principles. My understanding of the function of the Card Reader Machine is to authenticate the owner of a voter’s card and to prevent multiple voting by a voter. I am not aware that the Card Reader Machine has replaced the voters register or taken the place of Statement of results.[14]
In the appeal from the Abia State governorship election petition – Okezie Victor Ikpeazu v. Alex Otti & 4 Ors[15] – the Supreme Court in stating the reasons for its judgment on 26th February, 2016, reiterated extensively the status and function of the Card Reader in the scheme of our electoral process. Olabode Rhodes-Vivour, JSC, concurring with the lead judgment, trenchantly captured the attitude of the Court on the use of the Card Reader, when he opined:
Where a petitioner seeks to prove that there was over voting in the election in which he participated, he would succeed if he is able to show that the number of votes exceeds the number of would be voters in the voter register. If the petitioner decides to rely on Card reader Reports as in this case to show that the number of votes exceeds the number of voters recorded by the card reader but less than would be voters on the voters register, he would fail. That explains the plight of the petitioner in this petition/appeal. The card reader may be the only authentic document if and only if the National Assembly amends the Electoral Act to provide for card readers. It is only then that card readers would be relevant for nullifying elections.
The implication of the Supreme Court decision is that the ‘Approved Guidelines and Regulations for the Conduct of 2015 General Elections’ made by INEC pursuant to powers conferred on it by Section 160 (1) of the Constitution of the Federal Republic of Nigeria, 1999, cannot supersede the provisions of the Electoral Act, 2011 (as amended). The Court firmly placed its stamp of authority on the position that the legally recognized mode of accreditation of voters is as provided under Section 49 of the Electoral Act, and accordingly any allegation of over-voting or similar malpractices must be proved by having recourse to and tendering the Register of Voters. The Supreme Court did not really discountenance evidence of the Card Reader reports as irrelevant, neither did it designate the use of the Card Reader as amounting to electronic voting contrary section 52 (2) of the Electoral Act; instead the Court held that a Petitioner cannot rely on the Card Reader to establish such allegation up until it is legally recognized by incorporation into the Electoral Act by the National Assembly.
The Card Reader is indeed a very creative innovation that would have put paid to various species of fraud in the electoral process in Nigeria, but the use of the Card Reader during the 2015 elections was unfortunately marred by a lot of hiccups and complaints of malfunctioning resulting in undue delays, manipulations of the process, non-voting or outright cancellation of elections in many polling units, and disenfranchisement of many registered voters – all of which conduced to tense atmosphere in many States that easily degenerated into angry altercations and violence in some cases. This was the background that obviously gave rise to disparate decisions on the role and status of the Card Reader from the various Tribunals and even the Court of Appeal. Apparently constrained by the confusion foisted on our electoral jurisprudence by these conflicting decisions, the Supreme Court sought to restore sanity and consistency in the law by refusing to shift from the extant position prior to the introduction of the Card Reader.
Maybe it was the pronouncement of Kudirat Kekere-Ekun, JSC in Okezie Ikpeazu’s case (supra) that metaphorically ameliorated the perceived hard stance of the Supreme Court against an innovation that was intended to sanitize and lend more credibility to the electoral process by curbing the incidence of fraud, malpractices and corruption in the process. While underscoring the overarching sentiment of the Court on the issue, the erudite justice of the Supreme Court beautifully opined:
Laudable as the innovation of the Card Reader may be, it is only a handmaiden in the accreditation process. Thus any attempt to prove over-voting or non-accreditation without reference to the voters register of the affected local government areas, as in this case, was bound to fail.
[1] A report produced by the Human Rights Service (HURILAWS) with support from National Endowment for Democracy (NED) USA.
[2] ‘Nigerians hail the March 28 2015 general elections as free and fair’ http://www.snitchngr.com/nigerians-hail-the-march-28th-2015-general-elections-as-free-and-fair/ 2 April, 2015. Seen on 23/3/ 2016.
See also Hakeem Onapajo ‘How Credible Were the Nigerian 2015 General Elections? An Electoal Intergrity Framework Analysis’ Dept of Politics and International Studies, University of Zululand, South Africa, 2015.
[3] Clifford Ndujihe & Charles Kumolu ‘2015: Are the polls really credible, free and fair’ Vanguard Newspaper 2 May, 2015 http://www.vanguardngr.com/2015/05/2015-are-the-polls-really-credible-free-and-fair/ Seen on 23/3/2016
[4] John Campbell, Nigeria’s 2015 Election: Contingency Planning Memorandum Update February, 2015 http://www.cfr.org/nigeria/nigerias-2015-presidential-election/p36087?cid=ppc-Google-grant-NIgeria_CPM_update_2015&gclid=CKC2-Lqs68sCFfMW0wod7wsKYQ Seen on 29/3/2016
[5] European Union Election Observation Mission – Final Report on Nigeria’s 2015 General Elections, July 2015.
[6] See Paragraph 8 (b) of the Approved Guidelines
[7] See Subsections 1 & 2
[8] See Paragraph 10 of the Approved Guidelines
[9] See paragraph 11 of the Approved Guidelines
[10] See paragraph 12 of the Approved Guidelines
[11] See paragraph 13 of the Approved Guidelines
[12] See paragraph 14 of the Approved Guidelines
[13] Suit No. SC 907/2015
[14] The Supreme Court reaffirmed this position in its subsequent decisions in Okereke v. Umahi (SC. 1004/2015) delivered on 5th February, 2016 and Wike Nyesom v. Hon. Dr. Dakuku Peterside & Ors (SC.1002/2015) delivered on 12th February, 2016.
[15] SC. 18/2016
